Opinion
NO. 14-16-00968-CR
01-25-2018
GUADALUPE WALLY RODRIGUEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court Harris County, Texas
Trial Court Cause No. 1481921
MEMORANDUM OPINION
Appellant Guadalupe Wally Rodriguez appeals his conviction for capital murder, raising three issues for our review. First, he contends that the trial court lacked jurisdiction because a grand jury impaneled in one district court presented the indictment to a different district court in the same county. Second, he asserts that his conviction is void because there is no affirmative evidence in the record showing that the presiding judge, a retired district judge sitting by assignment, took a constitutionally required oath of office. And third, he argues that the trial court reversibly erred in admitting a photograph of appellant, which depicts appellant with a firearm attached to his belt. Finding no merit to any of appellant's arguments, we affirm.
Background
The facts of this case need not be recounted in great detail here for purposes of the issues raised in this appeal.
A Harris County grand jury indicted appellant for capital murder. The State alleged appellant shot and killed two men, John Shepherd and Daniel Rebeiz. Appellant pleaded not guilty, and the case proceeded to trial.
Richard Bradford sold drugs out of a "dope house" on Market Street in Channelview, Texas. According to Bradford, Shepherd and Rebeiz were friends and frequent visitors to Bradford's property. Bradford met appellant for the first time in mid-July 2013, when Rebeiz suggested Bradford hire appellant "for security" because Rebeiz was concerned Bradford's property was going to be robbed. While Bradford denied that appellant took on a security role, Bradford testified that appellant became a regular visitor to the property and would carry a firearm on the side of his belt. Appellant often visited the property with his friend Antonio Anguiano.
Both appellant, in opening argument at trial, and the State, in its brief to this court, referred to Bradford's property as a "dope house."
On the afternoon of August 22, 2013, Bradford told appellant and Anguiano that Bradford did not want them to come to the property anymore. Shepherd and Rebeiz were present during this conversation. Appellant and Anguiano left the property, and, a short time later, Bradford left as well. Shepherd and Rebeiz remained.
A few hours later, Harris County Sheriff's Office Sergeant Michael Watkins responded to a call from Bradford's property. He found two men who had been shot and killed—Shepherd and Rebeiz. Sergeant Matthew Ferguson, the lead homicide investigator assigned to the case, testified that he believed the murders occurred as part of a "drug deal gone bad," i.e., a robbery.
Police suspected appellant and Anguiano had committed the murders and arrested them. Appellant was charged with both deaths in a single count of capital murder. The jury found appellant guilty, and the trial court sentenced appellant to a term of life in prison without parole.
Anguiano was also charged with, and convicted of, capital murder for the deaths of Shepherd and Rebeiz. See Anguiano v. State, No. 01-16-00592-CR, 2017 WL 2871791 (Tex. App.—Houston [1st Dist.] July 6, 2017, pet. ref'd) (mem. op., not designated for publication) (affirming Anguiano's conviction).
See Tex. Penal Code § 12.31(a)(2) (in a capital felony case in which the State does not seek the death penalty, the defendant, if adjudged guilty, shall be punished by imprisonment for life without parole).
Appellant timely appeals.
Analysis
A. Trial Court's Jurisdiction
In his first issue, appellant argues that his judgment of conviction is void for lack of jurisdiction. He contends that the grand jury for the 179th District Court had no authority to present the underlying indictment to the 209th District Court; accordingly, he argues, the 209th District Court lacked jurisdiction to convict and sentence him. As this court and other courts have recently and repeatedly held, appellant's argument ignores the great weight of authority to the contrary. See Saldivar v. State, --- S.W.3d ---, 2017 WL 4697888, at *1-2 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Aguillon v. State, No. 14-17-00002-CR, 2017 WL 3045797, at *1-3 (Tex. App.—Houston [14th Dist.] July 18, 2017, pet. ref'd) (mem. op., not designated for publication) (discussing the nature of grand jury indictments and rejecting jurisdictional argument); Nguyen v. State, No. 14-17-00090-CR, 2017 WL 6329881, at *1 (Tex. App.—Houston [14th Dist.] Dec. 12, 2017, pet. filed) (per curiam) (mem. op., not designated for publication); see also Allen v. State, --- S.W.3d ---, 2017 WL 5712602, at *2-5 (Tex. App.—Houston [1st Dist.] 2017, no pet. h.); Davis v. State, 519 S.W.3d 251, 256 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd).
The 179th and 209th District Courts are both criminal district courts in Harris County, Texas. They share the same clerk, i.e., the Harris County District Clerk, and have original jurisdiction in felony criminal cases. Here, the grand jury for the 179th District Court returned a true bill of indictment for the charged offense, which was then presented to the Harris County District Clerk, as demonstrated by the clerk's original file stamp, and filed in the 209th District Court. Under these circumstances, and for the reasons stated in our prior opinions, the 209th District Court was properly vested with jurisdiction over appellant. See Saldivar, 2017 WL 4697888, at *1-2; Aguillon, 2017 WL 3045797, at *1-3; see also Shepherd v. State, No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.—Houston [1st Dist.] June 29, 2017, pet. ref'd) (mem. op., not designated for publication) ("After the grand jury votes concerning presentment of an indictment, the State can file in any court that has jurisdiction over the case.").
We overrule appellant's first issue.
B. Presiding Judge's Oath of Office
In his second issue, appellant argues that his judgment of conviction is void because the record fails to demonstrate that the visiting judge who presided over the trial was administered a constitutionally required oath of office.
Senior Judge Terry Flenniken, a retired district judge sitting by assignment, presided over appellant's trial. Appellant contends that Judge Flenniken is an "appointed officer," required by the Texas Constitution to take two oaths before entering upon the duties of his office. See Tex. Const. art. XVI, § 1 (providing oaths of office for all elected and appointed officials). Appellant complains that the record does not reflect that Judge Flenniken took these oaths and argues, therefore, that any judicial act taken by Judge Flenniken was without authority.
We have addressed, and rejected, this argument, as have our sister courts. See Simon v. State, 525 S.W.3d 798, 799-800 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also, e.g., Macias v. State, --- S.W.3d ---, 2017 WL 5150315, at *7-8 (Tex. App.—Houston [1st Dist.] 2017, pet. filed); Barnes v. State, No. 03-13-00434-CR, 2016 WL 3917126, at *7 (Tex. App.—Austin July 13, 2016, pet. ref'd) (mem. op., not designated for publication); McMillian v. State, No. 13-11-00123-CR, 2012 WL 3241830, at *1-3 (Tex. App.—Corpus Christi Aug. 9, 2012, no pet.) (mem. op., not designated for publication). As we held in Simon, an appellate court generally indulges every presumption in favor of the regularity of the trial court proceedings. See Simon, 525 S.W.3d at 799; see also Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (citing McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)). "The presumption of regularity is a judicial construct that requires a reviewing court, 'absent evidence of impropriety,' to indulge every presumption in favor of the regularity of the trial court's judgment." Murphy, 95 S.W.3d at 320 (quoting Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000)). This presumption applies to an appellate challenge to an alleged failure to take constitutionally required oaths. Simon, 525 S.W.3d at 800.
Here, assuming appellant is correct that retired senior judges must take the oaths of appointed officers required under the Texas Constitution, appellant cites nothing in the record demonstrating that Judge Flenniken did not take the oaths of office. Because appellant does not identify any "evidence of impropriety" sufficient to overcome the presumption of regularity, we overrule his second issue. Light, 15 S.W.3d at 107; see also Simon, 525 S.W.3d at 800 (mere allegation of visiting judge's failure to take oaths was insufficient to overcome presumption of regularity); Smith v. State, No. 01-15-01055-CR, 2017 WL 929544, at *1-2 (Tex. App.—Houston [1st Dist.] Mar. 9, 2017, pet. ref'd) (mem. op., not designated for publication) (same, where Judge Flenniken was the visiting judge).
C. Admission of Photograph
In his third issue, appellant argues that the trial court reversibly erred by admitting a photograph showing appellant with a gun tucked in his waistband. Specifically, he contends that any probative value of this photograph was substantially outweighed by its prejudicial effect, warranting exclusion under Texas Rule of Evidence 403.
Although relevant, evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. We review the trial court's decision to admit or exclude evidence under Texas Rule of Evidence 403 for an abuse of discretion. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Burton v. State, 230 S.W.3d 846, 849 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The admissibility of a photograph rests within the trial court's sound discretion and is based on a determination of whether the exhibit serves a proper purpose in assisting the fact finder. Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex. Crim. App. 1991). Photographs are generally admissible if verbal testimony as to matters depicted in them is also admissible. Id. at 647; see also Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997).
Before the complained-of photograph was admitted, Bradford testified that he had observed appellant to be in possession of a firearm, and that when Bradford would see appellant with a firearm, appellant carried it on the side of his belt. The prosecutor showed Bradford the picture of appellant, and Bradford identified appellant and stated that the photograph accurately depicted appellant carrying a firearm. The State then offered the picture for admission, and appellant objected. When asked for a specific legal objection, appellant contended both that it was irrelevant and "far more prejudicial" under Rule 403. The trial court overruled the objections.
Given the unobjected-to testimony from Bradford regarding appellant's usual practice of carrying a firearm on his belt, we do not believe admission of this single photograph was unfairly prejudicial. See Lopez v. State, No. 14-15-00887-CR, 2017 WL 1181294, at *7 (Tex. App.—Houston [14th Dist.] Mar. 30, 2017, pet. ref'd) (mem. op., not designated for publication). "Generally, any error in the admission of evidence is cured when the same evidence comes in elsewhere without objection." Id. (citing Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Tatum v. State, 431 S.W.3d 839, 844 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd)). Moreover, as appellant admitted at trial, the photograph "doesn't show the defendant doing anything unlawful or improper." We conclude that the trial court's decision to admit this photograph lies comfortably within the zone of reasonable disagreement. See, e.g., Lopez v. State, 478 S.W.3d 936, 944-47 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (in capital murder trial, trial court's admission of photograph of the appellant wearing a blue bandana, displaying a blurry gang tattoo, and holding two shotguns was not an abuse of discretion under Rule 403).
We overrule appellant's third and final issue.
Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).